Plaintiff
Cornelius Brown (“Plaintiff”) filed his Complaint
(Filing No. 1) on August 1, 2016, and a Supplemental
Complaint (Filing No. 1-1) on August 24, 2016, and
was subsequently granted leave to proceed in forma pauperis
(Filing No. 6). The court now conducts an initial
review of Plaintiff's complaints to determine whether
summary dismissal is appropriate under 28 U.S.C. §
1915(e)(2).

I.
SUMMARY OF COMPLAINT

Plaintiff
alleges that the Douglas County Mental Health Board civilly
committed him to the Lincoln Regional Center
(“LRC”) in Lincoln, Nebraska, on September 9,
2015, and he was confined there when the incidents at issue
occurred. Plaintiff has recently been moved to the Norfolk
Regional Center (“NRC”). (Filing 7.) Plaintiff
sues Courtney Philips, Director of the Nebraska Department of
Health and Human Services (“DHHS”)-the state
agency that operates the LRC and NRC-and five employees who
work at the LRC for treating him unfavorably because he is
transgender. Plaintiff sues each of the defendants in their
individual and official capacities.

Plaintiff's
Complaint alleges that he is an “openly documented
transgender who indentif[ies] as female, and has been
dressing accordingly since age 16.” (Filing No. 1 at
CM/ECF p. 4 (capitalization corrected).) In both May and June
of 2016, Plaintiff approached defendant Kyle Malone, a team
leader, and requested that Plaintiff be allowed to
“dress in clothing that identifies with her gender
identity” and to purchase and wear clothing consistent
with Plaintiff's gender identity. Malone laughed at
Plaintiff, told Plaintiff that her[1] “request is as good as
denied, ” and said, “If you ever want to get outa
here, just talk in your groups, & let the rest of this
go.”

In June
2016, Plaintiff mailed a complaint to defendant DHHS Director
Philips concerning Plaintiff's “expression of her .
. . transgender rights and the discrimination and inhumane
treatment plaintiff has been subjected to, ” including
being moved to a room with her own bathroom (instead of
sharing a bathroom with another patient) that was visible to
all LRC staff and administration, and being subject to staff
members barging into her room without knocking. (Filing No. 1
at CM/ECF p. 5 (capitalization corrected).) Plaintiff alleges
that Philips has not responded to her complaint.

Plaintiff
accuses defendant Shannon Black, LRC Program Director, of
discrimination, mental anguish, and defamation of character
during June and July 2016 for moving Plaintiff to a new room
after she met with Black to discuss “being allowed to
dress in attire that represents Plaintiff's gender
identity.” (Filing No. 1 at CM/ECF p. 6 (capitalization
corrected).) Plaintiff alleges that both Black and LRC
Program Manager Cindy Dykeman told Plaintiff to submit in
writing the items Plaintiff would like to have. Plaintiff
complied[2], but has not received a reply and has thus
“been denied to transition.” (Filing No. 1 at
CM/ECF p. 6.)

Plaintiff
further complains that defendants Lisa Laurell, LRC Social
Worker and Group Therapist, and William Becker, LRC Therapist
and Group Facilitator, have “initiated negative
retaliation” against Plaintiff by writing
“negative entries” about Plaintiff to the mental
health board. Plaintiff claims that other inmates have not
been treated this way, even those who were caught having
sexual interaction, viewing child pornograpy, and attacking a
therapist.

In her
Supplemental Complaint (Filing No. 1-1), Plaintiff
alleges that since the filing of her August 1, 2016,
Complaint in this court, defendants Laurell, Black, and
Becker have further retaliated against her. Specifically,
Plaintiff says she filed her first Complaint and then
contacted a staff writer for the local newspaper, the Lincoln
Journal Star, who expressed interest in Plaintiff's
Complaint and discussed writing a story on it. Thereafter,
Laurell and Black sent an email throughout Plaintiff's
housing unit at the LRC warning all staff that there would be
“consequences for any communication with the plaintiff
regarding her . . . concerns, and that no one from the media
was allowed into the building to speak with the plaintiff
without the named defendants['] permission.”
(Filing No. 1-1 at CM/ECF p. 2 (capitalization corrected).)

When
Plaintiff approached Laurell about the situation, Laurell
told Plaintiff to leave her office and, since then,
Plaintiff's telephone calls have been monitored and
Plaintiff has been subject to room searches for contraband
three times a month, while other LRC residents are subject to
contraband searches only once a month. Plaintiff claims that
since she filed her lawsuit and talked to the newspaper, LRC
staff has been directed to open her room door without
knocking; LRC has generated more negative treatment notes
about Plaintiff; and the LRC denied Plaintiff the proper
amount of “points” during the June and August
2016 reporting periods. (Id. at p. 3.)

Finally,
Plaintiff alleges that she met with defendant
Black[3] in August 2016, and Black
“repeatedly denied” Plaintiff's requests
concerning her gender identity, stating, “All this is
gonna do is shoot you in the foot, this will keep you down
here longer, so just focus on getting out of here.”
(Id.) Plaintiff has not received any further
communication from the defendants since this meeting.

Pursuant
to 42 U.S.C. § 1983, Plaintiff seeks to assert claims
for declaratory, injunctive, and monetary relief for
violations of the First, Fifth, Eighth, and Fourteenth
Amendments that occurred when the defendants subjected
Plaintiff to gender discrimination, cruel and unusual
punishment, violation of Plaintiff's right to equal
protection, and defamation of character related to her
“constitutional rights to free gender
expression.” (Filing No. 1-1 at CM/ECF p. 3.)
As far as injunctive relief is concerned, Plaintiff wishes to
dress according to her gender identity at the LRC and
requests to be transferred to a treatment facility that will
not subject her to discrimination. (Filing No. 1 at
CM/ECF pp. 8-9.)

Liberally
construed, Plaintiff claims the defendants denied her equal
protection by discriminating against her based on gender;
subjected her to First Amendment retaliation; denied her due
process under the Fourteenth Amendment; and defamed her
character.

II.
LEGAL STANDARDS ON INITIAL REVIEW

The
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate. See 28
U.S.C. § 1915(e). The court must dismiss a complaint or
any portion of it that states a frivolous or malicious claim,
that fails to state a claim upon which relief may be granted,
or that seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2)(B).

Pro se
plaintiffs must set forth enough factual allegations to
“nudge[] their claims across the line from conceivable
to plausible, ” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly,550 U.S. 544, 569-70 (2007); see also Ashcroft v.
Iqbal,556 U.S. 662, 678 (2009) (“A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”).

“The
essential function of a complaint under the Federal Rules of
Civil Procedure is to give the opposing party ‘fair
notice of the nature and basis or grounds for a claim, and a
general indication of the type of litigation
involved.'” Topchian v. JPMorgan Chase Bank,
N.A.,760 F.3d 843, 848 (8th Cir. 2014) (quoting
Hopkins v. Saunders,199 F.3d 968, 973 (8th Cir.
1999)). However, “[a] pro se complaint must be
liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).

Liberally
construed, Plaintiff here alleges federal constitutional
claims. To state a claim under 42 U.S.C. § 1983, a
plaintiff must allege a violation of rights protected by the
United States Constitution or created by federal statute and
also must show that the alleged deprivation was caused by
conduct of a person acting under color of state law. West
v. Atkins,487 U.S. 42, 48 (1988); Buckley v.
Barlow,997 F.2d 494, 495 (8th Cir. 1993).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;III.
...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.